National Law Firm Parker Waichman LLP Fights for Victims of Toxic Torts
The Parker Waichman LLC Environmental Attorneys Explain How to Maximize Your Recovery
A toxic tort is litigation of a legal claim that involves exposure to an environmental hazard. One of the most well-known toxic torts is contamination of the groundwater in Woburn, Massachusetts which leads to numerous people, including children, being stricken by cancer and ultimately dying. The tragedy was documented in the book and motion picture known as a “Civil Action.” Another example of a toxic tort, which arose out of Massachusetts but effected a significant part of our country, is the pharmaceutical contamination of medication containing meningitis from the New England Compounding Center.
While the substance causing the toxic tort is not necessarily a carcinogen or cancer-causing agent, the material can kill, it can make people very ill, disrupt or permanently alter their lives, and take away some of life’s enjoyment to which we are all entitled. Contamination is not always caused by some mustache-twirling, nefarious villain on a CEO who is only out to make money. Frequently, toxic torts emerge from exposure to a toxin once believed to be safe.
The substance that causes sickness leading to a toxic tort claim can vary depending on the circumstances of the individual case. For instance, widespread exposure to asbestos, pesticides, chemicals dumped into water or on the ground which then seeps into groundwater, contaminated medications, or other substance released into the air we breathe can cause people to fall ill and die.
Parker Waichman LLP Represents Individuals or the Families of Those Injured or Killed by a Deadly or Toxic Substance
Parker Waichman LLP is a national toxic tort law firm whose attorneys and staff have dedicated their careers to seeking compensation for people who suffered sickness or died as a result of another’s negligence. Parker Waichman’s toxic tort attorneys possess significant experience vigorously pursuing companies who have carelessly or recklessly exposed innocent victims to compounds that destroyed their lives. If you or someone you love has been injured or has died from chemical exposure, then Parker Waichman LLP will aggressively pursue compensation on your behalf.
Chemicals That Lead to Toxic Tort Litigation
Physicians and researchers have identified numerous substances or by-products that have been linked to severe illness and even death from exposure to that material. Most people are probably familiar with asbestos, but many others are suspected of harming people. Those compounds are:
- Chemical solvents including those used in dry-cleaning,
- Electro-magnetic fields from power lines,
- Chemical compounds used in industry such as benzene, PCBs, mercury, arsenic, and so-called heavy metals,
- Lead paint,
- Pesticides containing DDT or dioxin,
- Landfills and dumps filled with unlawfully disposed of materials,
- Silicosis and Silica,
- Welding rods, and
- tainted pharmaceuticals.
Types of Toxic Tort Claims
Frequently, toxic tort claims involve class action lawsuits. A class action lawsuit is a litigation in which the plaintiff, a singular person, brings a claim on behalf of an enormous number of people who are similarly situated, meaning they have suffered the same or similar injury. Another requirement of assembling a class action lawsuit, which must be approved by a judge before it can proceed, is that the list of potential plaintiffs is too many to join a name individually in the litigation. In many class action lawsuits, the individual plaintiff’s claim is insignificant on its own; however, when joined by hundreds or thousands of additional plaintiffs, then the potential damages can be significant.
Not all toxic torts are class action lawsuits, incidentally, but can involve a substantial number of inter-related people. One example is a group of industrial workers who were exposed to a chemical that has caused illness such as cancer. Another example is people who live adjacent to a mill who contracted a chronic disease.
Many toxic tort cases involve asbestos. Even short-term exposure to asbestos can lead to asbestosis, but most cases of asbestosis were caused by prolonged exposure to asbestos fibers. Asbestosis is a chronic lung disease resulting from inhaling asbestos fibers. The asbestos fibers become trapped in the victim’s lungs and lead to scarring. The scarring makes the walls of the lungs very stiff and hard to move and, therefore, the patient has a very difficult time breathing. The patient suffering from asbestosis will experience shortness of breath, loss of weight, and a dry cough that will not abate. Asbestosis cannot be cured.
What proof is necessary to prevail in toxic tort litigation?
The elements of a toxic tort claim are easily stated. They are:
- proof that the plaintiff experienced exposure to a dangerous substance or substances,
- the plaintiff became ill as a consequence of the exposure, and
- the defendant was at least partially responsible for exposing the plaintiff to the harmful toxins or failing to protect the plaintiff from exposure.
A plaintiff may have as many as four distinct, albeit complementary, legal theories to pursue. A plaintiff can rely on strict liability, negligence, fraud, and misrepresentation. Successfully proving any theory can result in the plaintiff recovering financial compensation for his or her injuries.
A significant challenge facing victims of toxic torts is knowing against whom the claim should be filed. There can be several potential defendants in a toxic tort case. For instance, in the case where plaintiffs were found to have cancer due to exposure to pesticides, potential defendants ranging from the chemical manufacturer, the company that packaged and marketed the compound, if different from the manufacturer, wholesalers, and retailers. If employees fell ill due to exposure to pesticides, like farmhands for example, then the farmhands’ employer is a possible defendant as well.
Another challenge toxic tort plaintiffs face is the passage of time. It may be tough to prove what lawyers refer to as causation because of the amount of time that has passed from possible exposure to illness. Not only will the passage of time implicate the statute of limitations, but the offending company might have moved, closed, or been sold to a new owner who had nothing to do with the activity that caused contamination.
It is not enough to merely explain that someone got sick to recover damages. Proving someone fell ill is an essential element of proof of the case to be sure, but the plaintiff must be able to show who is responsible for creating the condition that led to the sickness. As alluded to above, there could be many defendants involved in the chain of proof. Perhaps all were somewhat responsible for what happened because of their action or inaction.
The plaintiff has the burden of proof in a civil trial. The burden in a civil trial is known as a fair preponderance of the evidence. The civil standard of proof is less stringent than the more familiar burden of proof in criminal cases which is beyond a reasonable doubt. A preponderance of the evidence essentially is finding with 51 percent certainty to 49 percent certainty (at a minimum) that the allegations are true.
Legal Theories of Recovery
Strict liability is a legal theory based on the defendant creating a dangerous situation. In toxic tort cases, the defendant is strictly liable, meaning the plaintiff does not need to prove any intent or failure to perform a duty, because of the dangerous condition that is created by the defendants’ actions or inaction. For example, dumping toxic waste near a school, to use an extreme example, is manifestly dangerous even if the offending company took every step it could to protect against contamination. As a result, there is no need to prove that the defendant intended to cause harm or acted unreasonably because the defendant’s actions create such a “high degree of risk.” Such a high degree of risk means that a potential victim cannot take reasonable steps to protect herself or himself against the danger.
A defendant may be found strictly liable for manufacturing defects in addition to creating an extremely hazardous situation. The law does not impose a burden on the plaintiff to prove that the manufacturer was careless in some way. Rather, the plaintiff needs to show that the manufacturing process was faulty in some respect. The plaintiff must also prove that the manufacturing defect caused the injury. Lastly, the plaintiff must prove that the manufacturing defect made the product “unreasonably dangerous.”
With manufacturing defects, the plaintiff does not need to be a purchaser of the product to be protected from harm. People who are innocent bystanders but are injured because of a manufacturing defect may make a claim. For instance, the people who lived near the manufacturing plants in Woburn, MA, and contracted leukemia did not purchase the chemicals that ultimately poisoned them. Notwithstanding, those victims were able to pursue damages against the chemical manufacturers.
The law recognizes two different theories of manufacturing defect. They are a defect in the manufacturing process and a design defect. These theories are different in very important respects.
When a defect in the manufacturing process caused the injury, the offending material might be limited to a specific batch. For instance, if a medication distributed to people contains an adulterant, the product as a whole is not dangerous. Instead, it is only that one lot of goods. By contrast, a defect in the manufacturing process affects all of the goods made suffer from the problem.
The difference in the theories comes down to causation. It is not too often that a plaintiff can claim an injury and recover damages just because they were injured. The injury has to be logically tied to reason. It can happen, but it is extremely rare. Thus, if there is a defective manufacturing process, then the plaintiff must prove they came in contact with the poisoned lot of goods or borrowing from the example above, they bought the tainted pills. The plaintiff has no claim without that proof.
There are defenses to strict liability claims. Defendants will try to present evidence that their actions did not cause the injury suffered by the plaintiff. For instance, the defendant could argue that they did not cause the contamination or try to turn the tables on the plaintiff by arguing that the plaintiffs assumed the risk of their behavior. Additionally, the defendants will try to minimize the damages sustained by the plaintiffs, if possible. The former strategy would result in a finding of not responsible on the defendants’ behalf. The latter defense strategy would simply reduce the award the plaintiff received.
The legal theory of negligence is founded on the premise that people are responsible for acting reasonably toward each other to prevent harm. To prove a defendant is negligent, the plaintiff has an obligation to show that:
- The defendant owed the plaintiff a duty of care,
- the defendant violated that duty of care,
- the defendant’s breach of the duty of care caused the plaintiff’s injury, whether actually or “proximately,” and
- the plaintiff sustained damages as a result of the injury.
Negligent conduct, like strict liability, can take one of many forms. The defendants could be negligent for acting carelessly or failing to act when they had a duty to do so. Negligence can be a failure to warn of potential risks from conditions the defendant created such as on medication or placing appropriate signage around a plant that generates toxic waste. Also, the defendant may be found liable for a failure to investigate the circumstances of a particular situation.
Fraud is intentional conduct undertaken to convince another to relinquish something of value. Sometimes fraud is known as intentional misrepresentation. Either way, the essence of fraud is convincing another to rely on a statement of fact to their detriment which leads to injury. Fraud can also take the form of concealment of facts known to the defendant, the disclosure of which would change the perception of the plaintiff.
Fraud is usually part of a scheme, but it does not have to be. Fraud is also known as deceit. To recover damages for fraud or deceit, the plaintiff must prove that he or she detrimentally relied upon an assertion of fact made by the defendant.
Fraud is not easy to prove. The law requires that the plaintiff prove that the defendant intentionally lied to the plaintiff or the defendant made a statement with reckless disregard for the truth. Either way, the intent requirement is very difficult to prove. The benefit of proving an “intentional tort” such as fraud is that the law of the jurisdiction may permit the plaintiff to seek punitive damages against the defendants for their actions.
The Problem of Causation
The issue of causation was introduced earlier in this article, but it bears mentioning again, and in greater detail. Success in a toxic tort case often rises and falls on the plaintiff’s ability to prove the defendants caused the damage experienced by the plaintiff. Opinions from expert witnesses about how a person became poisoned and what happened to their bodies once the poison infected them are necessary to prove the defendants liable.
Expert witnesses are needed in toxic tort cases to help the jury understand what happened and why. Expert witnesses are someone who is allowed to give an opinion in court. Almost all witnesses are fact witnesses because they testify as to what they saw or did. Expert witnesses, assuming they have the appropriate qualifications to render an opinion, did not personally experience any of the facts of the case but have an understanding of what happened through their area of expertise.
In addition to the requisite knowledge, the expert must base his or her opinion on good science and not junk science. A person could have three PhDs and be eminently qualified, but if the science about which they will testify is not reliable, then they cannot offer an opinion based on junk science.
The Use of Experts Could Be Necessary for Your Case
The expert opinion requirement makes proving toxic tort cases very difficult. It might seem obvious at first blush, but it might not be unless there is an existing body of scientific evidence to support the plaintiff’s assertions. If not, then the experts have to conduct their own experiments and make their own deductions founded on existing science.
Some experts are necessary to establish toxic torts are:
- forensic pathologists who study the reasons why a person died or the progress of a disease,
- toxicologists who can give an opinion about the amount of a chemical in a person and the effect the chemical would have on that individual,
- pharmacokinetics who study the impact the body has on toxins,
- hydrologists who study the flow of water and how it moves underground,
- geologists who are experts in rock formation and ground composition,
- meteorologists who can discuss weather conditions,
- surgeons to testify about the procedures the victim needed,
- physical therapists, and
- other healthcare professionals.
Statute of Limitations for Toxic Torts
The statute of limitations for toxic torts typically depends on the state in which the harm occurred. Many U.S. states have a three-year statute of limitations on injury cases such as toxic torts. New York, for example, has a three-year statute of limitations on personal injury claims. Because illnesses might not manifest themselves until years later, determining when the statute of limitations will run can be tricky. There are a few exceptions to this seemingly harsh rule. However, filing a claim after the statute of limitations has run acts as an absolute bar to recovery. Parker Waichman’s toxic tort lawyers can help you figure out when the appropriate statute of limitations could run and will take steps to protect you against the application of that unfair rule.
Most states have another law which is akin to the statute of limitations. That is known as a statute of repose. Statutes of repose are more defendant-friendly than statutes of limitations because a statute of repose is a hard and fast date. Typically, a statute of repose prevents plaintiffs from filing a lawsuit against a defendant for an action after a lengthy period of time even if exceptions to the statute of limitations might apply. The best way to describe a statute of repose is as a “deadline.”
Again, statutes of repose are very technical pieces of legislation that the lawyers from Parker Waichman LLC are very familiar and can help you navigate through those murky waters.
Why Hire an Experienced Toxic Tort Attorney?
Litigation of toxic torts in complicated. As discussed, there are many highly technical aspects of the case which must be sorted through and handled properly. Any misstep along the lawsuit could result in a lost claim. You need attorneys who are committed to your cause and, perhaps most importantly, know how to prove the allegations so that you can recover compensation for your injuries.
Typical compensation for a toxic tort case
No case is like any other. Each case turns on the facts and the individuals who are involved. Toxic tort victims can recover:
- Medical expenses,
- Future medical costs,
- Future care,
- Lost wages,
- Loss of earning capacity,
- Loss of value of life,
- Loss of enjoyment of life,
- Pain and suffering, and
- Punitive damages in the appropriate case.
Why Choose Parker Waichman LLP?
Do not just take our word for it. The legal community has spoken, and we proudly have received the following distinctions:
- 8 (out of 10) rating by AVVO (a service that rates every attorney in the United States)
- “Preeminent Lawyers” AV Peer Review Rating (Martindale-Hubbell® – a company that, for more than 100 years, has rated attorneys across the United States and the world based on feedback from judges and their peers)
- Highest Ranking of “5 Dragons,” based on peer review by Lawdragon
- Listing in Best Lawyers Publication, determined by Extensive Peer Review
Our Toxic Tort Lawyers Are Ready to Discuss Your Claim Today
Parker Waichman LLP will evaluate your claim in a free, no-obligation consultation. Contact our toxic tort law firm today to learn more about how we can start working to help you obtain compensation for your loss. Parker Waichman LLP’s toxic tort attorneys aggressively pursue defendants who poison others.
Contact Parker Waichman LLP today by filling out our online form or by calling 1-800-YOURLAWYER (1-800-968-7529) if you or a family member is a victim of a toxic tort.
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